Appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, J.) convicting appellant of a narcotics conspiracy, and of offering to bribe a federal agent. Appellant contends that the admission into evidence of a government witness' testimony taken by deposition in France, using French procedures, violated Fed. R. Crim. P. 15, Fed. R. Evid. 804(b)(1), and the confrontation clause of the sixth amendment. Held: the admission of such evidence did not violate federal law or the constitution.
Van Graafeiland, Pierce and Altimari, Circuit Judges.
In order to obtain evidence for use in domestic trials, litigants are apt to find it increasingly necessary to conduct depositions in foreign countries. However, foreign laws do not always permit witnesses to be deposed in the manner to which American courts and lawyers are accustomed. In certain cases, the use of unconventional foreign methods of examination may exceed the limits of accepted American standards of fairness and reliability, such as underlie the confrontation clause and the rule against hearsay. Concerns of this type are addressed best on a case-by-case basis.
This appeal requires us to determine the extent to which the deposition of a government witness, taken abroad in a manner different from that which would be required of a deposition taken in the United States, may be admitted in evidence and used against a defendant in a criminal prosecution. Mohamed Salim was convicted by a jury in the United States District Court for the Eastern District of New York on charges of conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a), 846, and of offering a bribe to an officer of the United States Customs Service, in violation of 18 U.S.C. § 201(b). In an opinion reported at 664 F. Supp. 682 (E.D.N.Y. 1987), the district court, Jack B. Weinstein, Judge, held that a witness' deposition, taken in France pursuant to French law, was properly admitted pursuant to Fed. R. Crim. P. 15 and Fed. R. Evid. 804(b)(1), and did not violate Salim's rights under the confrontation clause of the Constitution, U.S. Const. amend. VI, cl. 4. For the reasons that follow, we agree with the district court and therefore affirm the conviction.
In November 1986, Bebe Soraia Rouhani arrived at Orly Airport in Paris, France, en route from Karachi, Pakistan, to John F. Kennedy Airport in New York. A routine inspection by French customs officials revealed that she was carrying nine pounds of heroin in the lining of her suitcases. She told French officials that the suitcases had been given to her in Karachi and that she was supposed to deliver them at Kennedy Airport to a man named "Qazi," whose description she provided. French authorities gave this information to United States Customs agents in Paris, who relayed it to New York. Defendant Mohamed Salim was identified at Kennedy Airport by his description, and was arrested after fleeing across the lobby of the International Arrival Terminal when an undercover agent addressed him as "Qazi" and asked if he were meeting "Bebe." At the time of his arrest, Salim had in his possession a photocopy of Rouhani's passport, containing her description and photograph. While being taken from the airport to the Metropolitan Correctional Center, Salim offered a customs agent $20,000 to allow him to escape.
Prior to trial, the government sought permission from the district court to take Rouhani's deposition in France since she was being held in custody by French police while awaiting her own trial for drug smuggling. The district court concluded that Rouhani's testimony would be important to the trial of appellant, but since she was unlikely to be able to appear at his trial here to give live testimony, the court issued a Request for Judicial Assistance to the Republic of France, and arrangements were made for Rouhani to be deposed before the Honorable Evelyne Verleene-Thomas, Examining Magistrate of the trial court (Juge d'Instruction du Tribunal de Grande Instance) in Bobigny, France (the "magistrate"). Appellant was in federal custody in New York pending trial but could not be transported to France to attend the deposition because the United States Marshals Service lacked authority to keep him in custody in France. Consequently, efforts were made to have two open telephone lines available between the court in France and the courthouse in the United States to enable Salim to hear Rouhani's deposition testimony on one line and to consult privately with his attorney on the other line. Additionally, the government sought permission to record the deposition on audio or video tape. Both proposals were rejected by the French court as contrary to French law. However, the French magistrate did permit a court reporter from the court in the Eastern District of New York, who had traveled to France together with the Assistant United States Attorney and Salim's attorney, to be present and to transcribe portions of the proceedings, even though French practice required the examining magistrate to keep a written summary of her own.
On the day of the deposition, contrary to expectations, the magistrate required the American prosecutor and defense attorney to submit their questions in writing since French law only permits a judge to question witnesses. Magistrate Verleene-Thomas also informed counsel that French law prohibited appellant's attorney from being present in the room while Rouhani testified. Confronted with this situation, the Assistant United States Attorney, who would have been allowed to be present, voluntarily agreed to absent himself from the room as well in order to avoid any appearance of unfair advantage.
Over objections by defendant's counsel, the deposition then occurred in the following manner in the magistrate's chambers: the government submitted direct examination questions to the magistrate in English and French, and defense counsel submitted cross-questions in English. At the magistrate's direction, copies of the questions were provided to the witness' attorney, as apparently is required by French law. The questions were posed by the magistrate in French and translated into Farsi for Rouhani, whose responses were then translated into French and back into English and recorded by the court reporter. Upon the conclusion of this segment of the examination, the witness left the room and the English translations of Rouhani's responses were read back to the attorneys by the court reporter. Defense counsel then submitted further cross-questions, and the procedure was repeated; another round of cross-examination followed thereafter, and the witness again answered the questions posed. Appellant, in the United States, was accessible by telephone during this entire period, but defense counsel made no effort to contact him.
According to the court reporter's testimony at trial, some conversations were not recorded in the transcript because they occurred in French between Rouhani and her lawyer; additionally, the transcript shows that Rouhani's lawyer made some statements in French to the magistrate that were not officially translated, but instead were summarized by the magistrate, and those summations were translated for the record. All statements that were made in or translated into English are reflected in the transcript, which, except for the absence of the conversations between Rouhani and her lawyer, appears to constitute a complete record of the proceedings.
The attorneys agreed with the magistrate to interrupt taking the deposition for one week. The American participants flew back to New York, the court reporter prepared a transcript of the first round of proceedings, and defense counsel reviewed that transcript with his client. The attorneys and the reporter thereafter returned to Paris, and a new round of cross-questioning occurred. The new portions of the proceedings were read back as before, except that this time, they were also read to the defendant by telephone with the aid of yet another interpreter in New York. After further questioning by the defense and redirect examination by the prosecutor, defense counsel again conferred by telephone with his client. Both attorneys then indicated that they had no further questions, and the taking of the deposition was concluded.
During the taking of the deposition, and in accordance with French procedure, there were a few instances in which Rouhani's attorney answered on her behalf or prevented her from answering because of her rights under French law. There were also a few instances in which, with the consent of the American attorneys, the magistrate supplemented the questions submitted by counsel with some of her own in order to elicit more complete responses from the witness. From a reading of the transcript, it is apparent that the questions submitted by the American attorneys were asked by the magistrate and answered by the witness.
At appellant's trial, various portions of the deposition transcript were read into evidence over defendant's objections. The court instructed the jury that the defendant had not been present at the taking of the deposition and the court emphatically cautioned the jurors as to the difficulty of assessing Rouhani's credibility, particularly given the absence of demeanor evidence. The court also informed them about the possible incentive of the witness to curry favor with the French court because of her own forthcoming trial. However, in order to aid the jury in determining what weight to accord the deposition testimony, Judge Weinstein permitted the reporter who transcribed the deposition to ...